Argument Preview: Determining the mens rea for indecent recording (if CAAF doesn’t find waiver), in United States v. Davis, No. 19-0104/AR
CAAF will hear oral argument in the Army case of United States v. Davis, No. 19-0104/AR (CAAFlog case page), on Wednesday, November 6, 2019, at 9 a.m. CAAF granted review of one issue after the Supreme Court decided United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), and held that the word knowingly in 18 U.S.C. §924(a)(2) – which states the punishment for unlawful possession of a firearm in violation of other statutes – applies to the material elements of the other statutes:
Whether the mens rea of “knowingly” applies to the consent element of Article 120c(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 920c(2) (2016).
Article 120c(a)(2) – which took effect in 2012 and is unchanged in its current form – prohibits indecent recording. Indecent recording occurs when a person:
Knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.
A reasonable expectation of privacy is defined as a reasonable belief that one’s naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple would not be recorded or visible to the public. See Article 120c(d).
Private (E-2) Davis was convicted of indecent recording for making a video of part of a sexual encounter involving himself and two other soldiers. The video showed Davis having sexual intercourse with one of the soldiers (who later alleged that the encounter was a sexual assault; Davis was acquitted of charges related to that claim). The findings were made by a panel of officer members, and the military judge instructed the members that the offense has four elements, including that Davis knowingly recorded the alleged victim and that the recording was without the consent of the alleged victim. The military judge did not instruct the members that Davis must have known that the alleged victim did not consent to the recording, but did instruct them that it was a defense if Davis has a reasonable mistake of fact belief that she consented.
Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. Davis may be another in that series.
Davis’ brief is short and makes the straightforward argument that under Rehaif, the word knowingly in Article 120c(a)(2) applies to the lack of consent element:
Applying Rehaif to this case, the statutory elements required the government to prove not just that appellant knowingly recorded but also that appellant knew the recording was done without consent. Moreover, the mistake of fact instruction the military judge gave the panel did not cure this error because it was incompatible with the statutory elements. Flores-Figueroa informs this Court the test for knowingly is a subjective one. Therefore, the military judge should have instructed the panel that if appellant had an honest belief that the recording was consensual, even if such belief was not reasonable, then no crime was committed because appellant necessarily did not know the recording was without consent.
App. Br. at 10 (emphases in original).
The Government Division disagrees, and it argues that the word knowingly applies only to the recording element of the offense. Yet it goes further and also argues that Davis affirmatively waived this issue by not objecting to the military judge’s instructions:
Defense counsel affirmatively waived this issue by stating multiple times that he had no objections to the military judge’s proposed instructions and by explicitly not requesting any additional instructions. . . .
On at least two occasions defense counsel had the opportunity to object and request additional instructions in response to specific questioning by the military judge. (JA 83, 86). Instead, after conferring both times with co-counsel, defense counsel stated he had no changes and no objections. This is affirmative waiver. . . .
At a contested court-martial with members, it should come as no surprise to defense counsel that after the presentation of evidence, he should be prepared to discuss findings instructions with the military judge. Indeed, it is prudent for counsel to structure their presentation of evidence and argument around the anticipated instructions. Accordingly, assuming, as this Court must, that defense counsel here was competent, this Court should apply affirmative waiver.
Gov’t Div. Br. at 23-24. There is, of course, a well-settled test for affirmative waiver:
Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.
United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (CAAFlog case page) (quoting United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011) (quoting United States v. Olano, 507 U.S. 725, 733 (1993))). The Government Division doesn’t even cite – never mind apply – that test. But neither does CAAF’s recent waiver jurisprudence, a topic addressed in the #3 Military Justice Story of 2017 and the #5 Military Justice Story of 2018. Rather, CAAF has found that a military accused’s rights may be waived by his defense counsel’s inaction without the slightest indication that the accused knew what was happening.
For example, just a few months ago, in United States v. Haynes, 79 M.J. 17 (C.A.A.F. Jul. 2, 2019) (CAAFlog case page), a majority of CAAF held that a military defense counsel’s agreement with a military judge’s calculation of the amount of pretrial confinement credit due to the accused constituted an affirmative waiver by the accused of the right to additional credit. Writing for the majority, Chief Judge Stucky explained:
At trial, counsel engaged in the following exchange with the military judge:
MJ: And, Counsel, based upon the information on the charge sheet, the accused is to be credited with 107 days of pretrial confinement credit; is that correct?
TC: Yes, Your Honor.
DC: Yes, Your Honor.
By answering in the affirmative when asked if he agreed with the proposed amount of pretrial confinement credit due, Appellant affirmatively acknowledged that he was not entitled to any additional confinement credit.
79 M.J. at 19. Of course defense counsel ordinarily speak for the accused, but affirmative waiver is not the ordinary situation. Rather, as the Supreme Court explained in Olano, the existence of waiver might not only require the accused to speak for himself, but might also require specific procedures (such as a detailed colloquy with the military judge) and evidence that the accused knew exactly what he was waiving. Following CAAF’s apparent lead, the Government Division sidesteps those concerns in Davis.
The Government Division’s waiver argument also invites claims of ineffective assistance of counsel, as “an ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial.” Harrington v. Richter, 562 U.S. 86, 105 (2011). There doesn’t appear to be such a claim in this case, but the Government Division’s brief tries to preempt one by invoking the “strong presumption that [defense] counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984).
The Government Division also argues that any error – if not waived – is harmless because the defense did not contest the consent element. Gov’t Div. Br. at 27-28. That’s probably the Government Division’s best argument because it distinguishes this case from the Supreme Court’s recent mens rea decisions in Rehaif and Elonis v. United States, 135 S. Ct. 2001 (2015). Both Rehaif and Elonis asserted mens rea defenses at trial and objected to the instructions at issue, establishing it as a significant matter in each case (though the error was ultimately found harmless in Elonis; see United States v. Elonis, 841 F.3d 589 (3d Cir. 2016)). But that also raises the possibility of a claim of ineffective assistance of counsel on the basis that Davis’ defense counsel failed to assert an available and possibly successful defense.